Potentially tricky decision ahead for Bryce

Newly elected Labor leader
Kevin Rudd
is set to visit Governor-General
Quentin Bryce
, who will need to be convinced he can command majority support in the House of Representatives.

In the event of a leadership change it is usual practice for the outgoing prime minister to advise the Governor-General to appoint the person elected as leader of their parliamentary party.

This is straightforward where a party has a majority of seats in the House of Representatives. It is more complicated where they don’t.

In 2010 Ms Bryce received advice to this effect from Solicitor-General
Stephen Gageler
, SC, who is now a High Court judge. For this reason Julia Gillard obtained the written agreement from crossbench members that they would support Labor. Reportedly Ms Bryce is seeking advice again from the new Solicitor-General,
Justin Gleeson
, SC.

NSW independent
Tony Windsor
has indicated he might not support a government led by Mr Rudd. Greens MP
Adam Bandt
and NSW independent
Rob Oakeshott
have indicated they want the question of who should form the government decided by Parliament. Tasmanian independent
Andrew Wilkie
on Wednesday night wrote to Mr Rudd saying he would not support a motion of no-confidence in the Labor government.

As a result, Mr Rudd will likely get the 76 votes needed in the House of Representatives provided other crossbenchers back him.

“In this Parliament, the independents are actually the kingmakers . . . and what they might do if there was a leadership change might have a bearing on ultimately who will have a right to be prime minister," University of NSW law professor
George Williams
said.

Former solicitor-general
David Bennett
, QC, said Ms Bryce could call independent MPs to ask who they would support.

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“Her duty is to ascertain by whatever means she can who is able to command a majority in the lower house," he said.

In a similar context the Tasmanian governor was criticised in 1989 for canvassing MPs’ views about who to commission premier. “If it is not clear she may have to make a difficult decision," Mr Bennett said. “She has to do the best she can to work out who can command a majority."

In this scenario, Mr Rudd would be appointed prime minister on the understanding he would test his majority on the floor of the house, as occurred in Tasmania.

If he is unable to command a majority of 76 members, Ms Bryce could then appoint Liberal leader Tony Abbott as prime minister. He too could be required to test his support on the floor of Parliament.

University of Adelaide senior law lecturer
Gabrielle Appleby
said the Governor-General might have to call an election if the situation remained unclear.

“There are very few instances where the governor-general acts without the advice of the prime minister," she said.

“There is a reserve power to call an election if the governor-general is not satisfied that any party has the confidence of the house, so in order to resolve that question they can call an election to see if that will return a party that holds the confidence of the house.

“If there were to be a leadership change, and it is unclear about the numbers that support a new leader, then that is when the governor-general would have the power to resolve the situation by calling an election."

If this was to occur, Ms Bryce would need to appoint a caretaker prime minister, which occurred in 1975 when John Kerr appointed Liberal leader Malcolm Fraser prime minister before the election.